Today marks the 60th anniversary of the European Convention on Human Rights (EC HR) coming into force. Ireland was one of the original signatories of the ECHR in 1950, and one of the first states parties to recognise the jurisdiction of the (now overburdened) European Court of Human Rights (ECtHR). The history of the Convention, the Court and the cases and principles of law that have been developed and decided upon have been well covered in a number of significant texts (see here, here, here, here and here).

“… my contemporary, Declan Costello, committed to social justice, was a potential force within the party. … Our two fathers had been members of the same team at the Imperial Conferences of the 1920s and had served on the Fine Gael front bench together in the 1930s and early 1940s; as a boy I had been at one party at least in Declan’s house and had crossed swords with him at a schools inter-debate in 1942; we had been friends in UCD in the mid-1940s, and we had worked together in the National Observer experiment in the late 1950s. I knew that he shared some at least of the views I had come to hold, and he was the point of access to me as far as Fine Gael was concerned”.

The death of former Fine Gael T.D., Attorney General and former President of the Irish High Court, Declan Costello was recently announced. Not wanting to do any injustice to the achievements of Mr. Costello in areas of law and politics (see here, here and here), two cases which Costello J. gave judgment in started off my own interest in law, poverty and socio-economic rights.

O’Reilly v Limerick Corporation [1989] ILRM 181 revolved around issues relating to the right of Traveller families living in a halting site to have access to running water, toilets, refuse collections and hard surfaces for their caravans. The claimants stated that Limerick Corporation had a duty to provide these services under the Housing Act 1966. In addition, the claimants stated that their constitutional rights had been violated due to the conditions they were forced to live in. The City Manager had described their living conditions as “totally unacceptable”. In this case, Costello J. stated that there was no constitutional right to the basic materials conditions to provide a certain minimum standard of living. If the plaintiffs’ claims were entertained, courts would, Costello J. decided, have to engage in distributive rather that commutative justice. Arguments of this nature should “be advanced in Leinster House [the Irish Parliament]” rather than the courts.

A number of years later, a similar case came before Costello J. The factual situation in O’Brien v Wicklow UDC (Unreported, High Court, June 10 1994) was similar to that of O’ Reilly. In O’Brien, persons living in a halting site where conditions were described as ‘unfit for human habitation’. The claimants argued that Wicklow had a duty to provide for basic sanitary requirements. While Costello J. based his judgment on a provision of law not in force at the time of the O’Reilly, he went on to state that the conditions in which the claimants were living, infringed their constitutional right to bodily integrity.

The last two years have seen growing evidence of the deleterious global impact of the economic crisis on the poorest in society. Domestically, there is increasing concern about the potential impacts of the Comprehensive Spending Review and other ‘austerity measures’ on the most vulnerable in the UK. At the same time, there has been a rising interest in the development of human rights accountability and adjudication in the area of economic and social rights (ESR) at the domestic, European and international levels.

This raises the question of whether ESR can play a role (whether as justiciable ‘hard’ rights or as normative values shaping and influencing policy) in challenging attempts by government to roll back basic entitlements of the poorest in society, particularly in relation to housing, social welfare and children’s rights. In light of this, the workshop aims to explore the role of human rights, and particularly ESR, in the context of austerity policies fashioned in the wake of the global financial crisis. It does so though focussing on four main themes: Monitoring, Mainstreaming, Legal Processes and Equality. It features leading ESR experts working in law, academia, the public sector and civil society. Continue reading “Economic and Social Rights in a Time of Austerity: Call to Register”→

The Project Team has analysed the Northern Ireland government’s spending on social housing, and has found that that it does not comply with international legal obligations to use the maximum available resources to ensure progressive realisation of the right to adequate housing set out in the International Covenant on Economic, Social and Cultural Rights.

Today the residents of Dolphin House in Dublin (left) launched a campaign entitled Rights in Action to highlight the appalling condition of many of the flats there. These flats are local authority provided housing but there are serious difficulties with the conditions of the housing including mould, dampness, sewerage invasion, and the implications of these conditions on the health of residents (RTÉ report). There are a couple of important things to note about this.

The first is that these conditions not only make the housing unsafe in a structural sense, but also create serious difficulties of health for residents. In this respect it seems to me that there is a serious question of the extent to which Dublin City Council—already under criticism for its policy of eviction in times of recession highlight by Aoife late last week—may, through its abject failure to maintain these residents, be breaching residents’ constitutional rights to bodily integrity and to the inviolability of the dwelling. In addition, the State has obligations under the European Charter of Social Rights and the International Covenant on Economic, Social and Cultural Rights.

The second interesting point is the way in which the residents are attempting to harness the power of a human rights discourse, including the power of human rights treaties, to try to highlight state and local authority failures and to advocate for their rights. This is a powerful example of both the power of community advocacy and the potential for international human rights standards to empower communities in respect of governmental failure. Sometimes (perhaps often?) as lawyers we are guilty of measuring the power of human rights instruments by their impact in court-based litigation, but there is a more fundamental way in which these standards can operate to create a reputation cost to state agencies that fail to respect the basic dignity-based entitlements of individuals and to try to mould the discussion from practicalities to rights. Continue reading “'Rights in Action': Residents of Dolphin House Harnessing the Power of Human Rights Discourse”→

Colm O’Cinneide is currently vice-president of the European Committee on Social Rights, which monitors state compliance with the European Social Charter. He is a reader in human rights law at University College London and a member of the Irish Bar. He was a member of the UK Task Force on the establishment of the new Commission for Equality and Human Rights.

Kate Fox is an Irish solicitor who has worked in the United Nations Office of the High Commissioner for Human Rights for over 10 years. She has provided substantive legal support to the independent monitoring bodies of the 4 treaties dealing with individual complaints against State parties: the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture, and the Convention on the Elimination of All Forms of Discrimination against Women.

CPD points are available for this event. PILA is a project of FLAC. Its objective is to promote and facilitate the use of law in the public interest for the advancement and protection of human rights and for the benefit of marginalised and disadvantaged people.

On Tuesday, March 30, the National Assembly of Ecuador gave approval for ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. It is the first country to do so … Once the Optional Protocol enters into force, it will allow groups and individuals whose economic, social and cultural rights have been violated to present a complaint before the United Nations and seek redress.

Article 18 OP-ICESCR provides that ten ratifications are needed for the Optional Protocol to enter into force.

So far, 32 states have signed the Optional Protocol, which was adopted unanimously by the UN General Assembly on 10 December 2008. A number of other countries are currently in the process of organising internal approval for ratification of the instrument. Ireland, unsurprisingly, is not one of these countries.

For more information on the International NGO Coalition for an OP-ICESCR and the global Campaign for Ratification and Implementation of the OP-ICESCR, see here

On 16th March 2010 the Grand Chamber of the European Court of Human Rights delivered its judgment in Carson & Ors. –v- the United Kingdom (Application No.42184/05). This is the end of Mrs Carson’s long road in challenging UK state pension policy.

Mrs Carson emigrated to South Africa and subsequently retired there. She had previously worked in the UK and made full contributions to the UK state pension. Indeed she continued to make such contributions on leaving. However when her state pension came into payment, it was not index-linked – it was frozen and would not be uprated to reflect the effect of inflation. The UK does not index-link state pensions paid in South Africa. The question for the Grand Chamber was whether this policy unlawfully discriminated against Mrs Carson on the basis of her place of residence, in breach of Article 14 in conjunction with Article 1 Protocol 1. Continue reading “Kenny on Carson & Ors. v The United Kingdom”→

The Committee’s terms of reference were to ‘consider and report to the Houses of the Oireachtas on the proposals set out in the Twenty-eighth Amendment of the Constitution Bill 2007.’ In her Foreword to the Report, the Committee Chairwoman, Mary O’Rourke, TD, stated that ‘since it began its work just over two years ago, the sole objective of the Committee has been to ensure the strongest protection of the rights of children and to further their best interests.’ The key question at this point is whether the Committee has, in fact, achieved this.

The Committee proposes that the existing Article 42 of the Constitution is amended as set out in the following section.

Amendment of Article 42 of the Constitution
Article 42 of the Constitution is proposed to be amended as follows—
(a) existing sections 1 and 5 to be deleted,
(b) new sections 1 – 6 set out below to be inserted, and
(c) existing sections 2 – 4 to be rearranged and numbered as sections 7 – 8.

Children
Article 42
1. 1° The State shall cherish all the children of the State equally.
2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.
3° In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.

2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
i the right of the child to such protection and care as is necessary for his or her safety and welfare;
ii the right of the child to an education;
iii the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.

3. The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

4. Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means, as shall be regulated by law, endeavour to supply or supplement the place of the parents, regardless of their marital status.

5. Provision may be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child and where the best interests of the child so require.

6. Provision may be made by law for the voluntary placement for adoption and the adoption of any child and any such law shall respect the child’s right to continuity in its care and upbringing.

7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
3° Parents shall be free to provide education in their homes or in private schools or in schools recognised or established by the State.

8. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

In doing so, the Committee highlighted that

It was not within the remit of the Committee to address or consider the provisions relating to education which are set out in Articles 42.2 – 42.4 inclusive of the Constitution. However, because the Committee has proposed the deletion of the current Article 42 and its replacement with a new one, it is necessary to re-state the retained Articles 42.2 – 42.4. They now appear essentially unaltered in Articles 42.7 and 42.8 of the Committee’s proposed Article 42. These retained sections are in a different order to that which pertains in the Constitution. They are numbered together at the end of the Committee’s proposed amendment to set them apart from the new sections proposed by the Committee. There is only one very minor amendment to the wording of these sections, namely the deletion of the word “this”, which appears in the current article 42.2. This is merely a technical alteration as this provision in its new position in the proposed Article 42.7.3 would otherwise not make sense.